Misguided child support decision from South Carolina’s Supreme Court

N.B. The holding of Floyd v. Morganthat it took a higher burden of proof to modify support agreement was subsequently overruled in the case of Lewis v. Lewis, 392 S.C. 381, 709 S.E.2d 650 (2011)

In 2007, the South Carolina Court of Appeals issued a published decision in Floyd v. Morgan, 375 S.C. 246, 652 S.E.2d 83 (Ct. App. 2007). There were two primary child support issues in that case. The first issue was whether the custodial parent’s 43% increase in income and the elimination of $544.00 in monthly child care expenses constituted a change of circumstances entitling Ms. Floyd to a reduction in her child support obligation.

The second issue was whether the family court judge had properly used the Worksheet C guideline, the shared custody worksheet that can be used when both parents have the child(ren) at least 109 overnights per year that typically results in a lower child support obligation for the non custodial parent. The parties had reached a child support agreement in 2000 in which Ms. Floyd had approximately 147 overnights per year, yet they decided to use the sole custody child support worksheet, Worksheet A, in setting child support. At her child support modification trial in 2006, Ms. Floyd asked the court to use Worksheet C in calculating child support even though the amount of time she had with the children had not changed since 2000. After the family court judge decided that Ms. Floyd had proven a substantial change of circumstances to modify child support, and recalculated child support using the parties’ current incomes on Worksheet C guidelines, Mr. Morgan appealed.

The Court of Appeals unanimously agreed that Ms. Floyd had proven a substantial change of circumstances, justifying a modification of child support. However, in a 2 to 1 decision, the Court of Appeals held that it was in the family court’s discretion to use the Worksheet C guidelines over Mr. Morgan’s objection–even though the parties had previously agreed to use Worksheet A guidelines and even though Ms. Floyd had not increased her time with the children. Judge Short dissented from this portion of the Court of Appeals’ opinion, noting that there was no change of circumstance that would justify changing the worksheet to be used in setting child support and that when the parties had previously agreed to use Worksheet A, there was no justification, given Mr. Morgan’s objection, to now use Worksheet C.

When the Supreme Court accepted certiorari (agreed to review the Court of Appeals’ decision), I had assumed it had intended to adopt Judge Short’s reasoning and hold that the family court erred in setting child support on Worksheet C. Instead, the July 6, 2009 Supreme Court Floyd v. Morgan, 383 S.C. 469, 681 S.E.2d 570 (2009) made, I believe, a complete hash of the case and introduced tremendous uncertainty in child support determinations.

The Supreme Court’s decision is misguided in numerous ways. First, the Supreme Court, in a one-sentence aside, adopted the Court of Appeals’ holding “that upon a finding of a substantial change in circumstances the family court judge has discretion to utilize any Worksheet he or she finds appropriate under the facts of the case.” There are two problems with this holding: first, it allows the family court judge discretion to change the benefits one party had obtained in a previous bargain. If Mr. Morgan (or any custodial parent) bargains for use of Worksheet A in setting child support, he ought to have the benefit of that bargain until there is a change in the amount of time Ms. Floyd (or any non custodial parent) spends with the child(ren). Second, since there is absolutely no guidance as to how a family court judge is to exercise his or her discretion in deciding whether to use Worksheet A or Worksheet C in circumstances in which one party is seeking to modify a previous child support decision, the Supreme Court’s opinion now makes such child support determinations the “luck of the [family court judge] draw.” There is no way for attorneys to provide guidance to clients on how child support will be determined in such circumstances.

Had the Supreme Court merely stopped there in its reasoning and affirmed the Court of Appeals’ decision, it would have ratified uncertainty in child support modification cases in which both parents had at least 109 overnights. Instead the Supreme Court decided that there was no substantial change of circumstance and that the family court had erred in modifying child support at all.

In reaching this decision the Supreme Court relied heavily upon a decision it had issued in appeal I had successfully handled, Upchurch v. Upchurch, 367 S.C. 16, 624 S.E.2d 643 (2006). Upchurch held that a party seeking modification of child support had a higher burden for showing changed circumstances when child support was previous set by agreement. The rationale is that it should be harder for parties to change their agreements than to change what had been imposed by the court (ironically, the Supreme Court completely ignored this rationale in resolving the Worksheet A/Worksheet C issue).

However, in analyzing this higher burden of proof, the Supreme Court in Floyd v. Morgan took the requirement to extremes that no one could have anticipated. In Rogers v. Rogers, 343 S.C. 329, 540 S.E.2d 840 (2001), the Supreme Court held that a 21% increase in the non custodial parent’s income and increased child care expenses was a substantial change of circumstances, justifying an increase in child support. Here, the Supreme Court held that a 43% increase in the custodial parent’s income and an elimination of $544.00 per month in day care expenses was not sufficient to find a change of circumstances. This disparity creates a situation in which is it much easier to make child support go up than down, which will lead to continuous upward pressures on child support.

Even worse, the Supreme Court held that the elimination of $544 per month in day care expenses was not a change of circumstances because “given the children’s young ages at the time of the initial decree, we believe the parties would have foreseen the eventual elimination of the $544 child care expense used to calculate Mother’s initial child support obligation.” However this rationale ignores myriad cases in which the Supreme Court held anticipated future changes can still constitute a change of circumstance if, at the time of the previous order was issued, the trial court could not properly address that expected change. For example, seeSharps v. Sharps, 342 S.C. 71, 535 S.E.2d 913 (2000). Since neither party could have known what their circumstances would be when the children no longer needed child care, the Supreme Court has left Ms. Floyd (and similarly situated parties) no good method of resolving child support issues by agreement when day care is a substantial portion of the child support obligation.

The thrust of the Supreme Court’s opinion is that when a party agrees to a child support obligation, they will not be released from that obligation until they show that they can no longer afford the agreed-upon child support amount. Because, absent agreement, a non custodial parent can reduce his or her child support based upon a showing of substantially changed circumstances and then have child support reset pursuant to South Carolina’s child support guidelines, the Supreme Court’s decision creates a tremendous disincentive for non custodial parents to agree to a child support figure.

Any time the law creates greater uncertainty it gives litigants more reason to litigate, increases litigation costs, and leads to greater variation and less uniformity in the results similarly situation parties achieve, all of which is antithetical to the concept of justice. Typically published appellate court decisions add clarity and certainty to the law and make it easier for attorneys to guide their clients and judges to issue uniform decisions–that is one of the primary virtues of having published appellate opinions. The Supreme Court’s decision in Floyd v. Morgan is a rare example of a published decision that does the opposite. Given the Supreme Court’s decision that there was no change of circumstances to modify child support, it did not even need to rule upon whether it was discretionary to apply Worksheet A or Worksheet C. Further by tremendously increasing the burden to modify child support agreements, it makes it less likely that parties will reach agreements on child support and more likely that parties will require judicial determinations of child support. It is almost as though the Supreme Court intended to create great uncertainty and difficulty in reaching child support agreements.